US Supreme Court seeks compromise over contraception mandate

The justices have asked the lower courts to take another look at the issue

America’s Supreme Court has avoided making a definitive decision over the Obama administration’s rules for cost-free access to birth control, but has kept alive a legal challenge from faith-based groups.

On Monday the justices asked the lower courts to take another look at the issue in search of a compromise. The case concerns the administration’s arrangement for sparing faith-based groups from paying the birth control costs of women covered under their health plans.

“The court expresses no view on the merits of the cases,” the justices wrote. The matter almost certainly will not return to the Supreme Court before the 2016 presidential election, and perhaps not until a new justice is confirmed to take the seat of Justice Antonin Scalia, who died in February.

The outcome suggested the court lacked a majority, underscoring the effect of Justice Scalia’s absence. And it pointed to the prospect of other cases ending in a tie among the 31 that remain unresolved.

It was the latest sign of justices struggling to find a majority for cases taken up before Justice Scalia’s death, with the eight-member court splitting twice in 4-4 ties since February. Despite the Supreme Court’s decision to return the matter to lower courts, President Barack Obama said the “practical effect is right now that women will still continue to be able to get contraception.”

For now, the government will be able to continue ensuring that women covered by faith-based groups’ health plans have access to cost-free contraceptives. But the groups, which include not-for-profit colleges and charities, won’t face fines for not adhering to administration procedures for objecting to birth control benefits.

Compliance would violate their religious beliefs, the groups argued, because they would be pushing responsibility for providing birth control onto their insurers or insurance administrators.

The administration said the buffer shielded groups from paying for birth control if they objected on moral grounds. It said a ruling for the groups would disadvantage tens of thousands of women.

“They are getting health insurance, and we are properly accommodating religious institutions who have objections,” President Obama said in an interview on Monday with BuzzFeed.

But opponents claimed victory on Monday, too.

The decision is “great news for religious organisations who will now have a chance to make their case to the lower courts,” Carrie Severino, Judicial Crisis Network’s chief counsel, said. Severino, who opposes Garland’s confirmation, said the ruling underscores the stakes in choosing the next justice.

When the justices heard arguments in March, they appeared evenly divided. The court then ordered the two sides to file a new and unusual round of legal briefs in search of a compromise, perhaps by making contraceptive coverage available without requiring a notice of objection.

Eight appeals courts nationwide have sided with the administration; four of those were challenged in the case before the Supreme Court. One court has ruled for the groups so far.

The justices threw out all those rulings on Monday. Only groups that have challenged the rules are exempt at the moment. Even with them, the court said the government can still ensure access to cost-free contraceptives.

An earlier, related case revealed the court’s divide. In 2014, the justices ruled 5-4 with Scalia in the majority to allow some “closely held” businesses with religious objections to refuse to pay for contraceptives in a case involving the Hobby Lobby chain of craft stores, among others. They said their rights were violated under the 1993 Religious Freedom Restoration Act.

In Monday’s case, groups invoked the same law. The challengers included Bishop David Zubik, head of the Catholic Diocese in Pittsburgh; the Little Sisters of the Poor, nuns who run more than two dozen nursing homes for impoverished seniors; evangelical and Catholic colleges in Oklahoma, Pennsylvania, Texas and Washington DC; and the anti-abortion advocacy group Priests for Life.

Contraception is among a range of preventive services that must be provided at no extra charge under Obama’s health care law. The administration said the high cost of some contraception methods discourages women from using them. One effective means of birth control, the intrauterine device, can cost $1,000.

Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the birth control requirement. Other faith-affiliated groups must notify the government or their insurers if they object. And they must allow their insurers or third-party administrators to handle birth control matters.